Backhouse Jones Watermark

The Trade Union Act

07 June

What is it?

The government has introduced fundamental reforms to modernise trade union law. According to the Department for Business Innovation & Skills, the reforms in the Trade Union Act will:

  • Ensure strike action only takes place if based on clear and representative mandates, and if it meets new thresholds
  • Improve transparency and oversight of trade unions
  • Require reasonable notice of strike action, giving employers greater chance to prepare and put contingency plans in place

Under current legislation, strikes triggered by a small minority of a unionized workforce can lead to a huge amount of disruption for businesses and their employees. The Act, while acknowledging the important and constructive role trade unions play in a modern workplace, aims to remove or mitigate this disruption.

What does it change?

Thresholds:

The Act requires minimum thresholds to validify strike action:

  • At least 50% of trade union members entitled to vote must do so
  • In “important public services”, at least 40% of eligible voters must be in favour
    • Though this does not apply to “ancillary workers”

Unions also need to include more detailed information on ballot papers, including:

  • The issues that led to dispute stated in detail on each ballot paper
  • The specific industrial action proposed
  • An indication of the expected time period for strike action

E-balloting will be considered by the government ahead of strikes.
The government claims that the reforms are aimed at encouraging the resolution of workplace disputes without the need for industrial action, and to ensure that, where the latter is used, it is as a last resort with clear and ongoing support from trade union members.

Time scales:

The length of time a strike mandate is valid is now 6 months, beginning from the date of the ballot, though it can be increased to 9 if the union and employer agree. After this period, any strike action will be deemed unlawful and treated as such (unless another successful strike mandate is voted in). This differs from the current system, where there must be some industrial action within a 4 to 8 week period for the mandate to remain valid.

The notice period for industrial action has been doubled to 14 days.

Government hopes the imposition of a time limit for validity will “ensure strikes cannot be called on the basis on ballots conducted years before”, whilst the extension of the notice period is aimed at giving employers a reasonable chance to prepare.

 

Political Funds:

A change in rules for political funds is particularly notable. New members of trade unions now have to actively opt-in to their union’s political fund by way of written notice (members previously contributed automatically unless they notified their union that they did not wish to). This decision will have to be refreshed every 5 years. Provisions will not apply to existing contributors. The changes will come into force after a transitional period of 12 months.

Trade unions also need to report their expenditure in more detail. Where more than £2,000 is spent in a year, the recipient, the amount paid and the nature of expenditure must be set out in the trade union’s annual return to the Certification Officer.

The government hopes the new system will prevent members from contributing to a political fund they do not support. It also believes greater transparency will end the “inconsistency as to the level of detail of information provided in union-returns”.

Certification Officer:

The Act enhances the role of the Certification Officer, widening their powers. They are now able to:

  • Proactively investigate suspected breaches of statutory requirements
  • Investigate on their own volition or in response to third party information
  • Impose financial penalties up to £20,000 (both actual and conditional)

The investigative powers are notable: Certification Officers are currently able to investigate only if a complain is received from certain groups, such as trade union members. Tests will, however, need to be met. The Officer can only require documents if there is good cause to do so; they can only investigate where circumstances suggest a union may be in breach of a duty.

The ability to impose financial penalties is the most novel aspect. Officers are able to apply the power to new requirements as well as old, including the increased reporting requirements on political fund expenditure and ballot mandates.

Appeals against financial penalties and enforcement orders will be heard by the Employment Appeals Tribunal.

It is thought these changes will ensure greater union compliance.

The Act also provides for the Secretary of State to make affirmative regulations requiring trade unions and employer associations to pay for the recovery of the costs of running the Certification Office.

Picketing:

The Act requires unions to appoint a picketing supervisor who must be readily contactable by the union and police, and able to attend at short notice. They must be:

  • easily identifiable
  • provided with a letter of authorisation from the union
  • familiar with the Code on Picketing

Failure to comply with these new requirements means that employers will be able to apply to the courts for an injunction and seek damages from the unions. The courts may also grant an injunction to prevent the picket, or impose conditions before allowing it to continue.

The reforms are aimed at ensuring picketing is lawful and peaceful. They enshrine key provisions which provide greater union accountability, and ensure more consistent conduct at such events (previously, guidelines in Section F of Picketing Code of Conduct were not legally binding). It also allows non-strikers to work without fear of intimidation.

Strategic and measured business solutions providing 20:20 vision for your operation.
Bespoke training for your business DISCOVER TRAINING
24 hour legal cover for a fixed fee DISCOVER UP
A health, safety and risk management solution DISCOVER STEP